The central question presented on this appeal and writ or certiorari is whether New York is compelled to subsidized the shelter cost of an individual who is neither an applicant, nor a recipient to public assistance because he shares a dwelling with recipients of aid to families with dependent children with recipients of home relief, New York State and locally financed program.

We will not consider today the proceedings below, except in passings, since they are set forth in detail in our main brief, and it is not contended by either the appellants or the appellees that there were any procedural bars to this Court's consideration of dependent Social Security Act claims raised on the petition for certiorari and wherein the appellants seek of judgment of affirmance, and/or to this Court's consideration of the constitutional claims raised on the direct appeal from the three-judge District Court in which the appellants seek a reversal.

Nor will we consider, except in passing, the subsidiary issues briefed in appellants' main brief at points 4, 5 and 6 and in appellee's brief on the merits at 4, 5 and 6.

In New York, shelter is a separate component of assistance that every individual receives.

The other component that the recipient receives is a per-person flat grant for food, clothing and incidentals.

The amount paid for shelter or the shelter allowance is variable and depends on two factors: the actual rent on the dwelling in which the recipients live up to maximum established by number of rooms or number of recipients who in fact live there, and two; it is based on the percentage of recipients in relation to the total number of individuals who live in a particular dwelling.

The result of the computation of shelter allowances in light of these factors results in the finding that in New York, every recipient receives 100% of his per capita standard of need, or his individual shelter need determined in light of his actual participation or his share of the dwelling in which he lives and in relation to the actual or maximum allowed rent on that dwelling.

Under the system, no New York recipient can receive the entire cost of a dwelling unless he is in fact the exclusive occupant of that dwelling.

Since to do so, would be to attribute or transfer the needs of the other individuals who live there to the recipient.

Equally, no New York recipient receives a fixed or averaged allowance based on the shelter needs of a hypothetical recipient, such as are provided under flat grant systems.

To assure the court that in stating that New York needs 100% of the per capita standard of need of its recipients in terms of their shelter, and to assure you that we are not asking the realities by omitting consideration of the substance of the standard of need, we note that the maximums involved -- the maximums under which the -- the maximum which provide the sealing under which the shelter allowances are computed are provided by the 58 local services, social services districts which comprise the state.

That is intended by the state Department of Social Services as expressed directly in its pertinent regulation that the maximums be set at levels which provide shelter for recipients in conformity with local standards, and that the maximums are updated from time to time as appears on the face of them, in the appendix at pages 523 to 603.

And that the maximums themselves are subject to exceptions in favor of the recipients which are commonly made by local authorities to assure that shelter is in fact provided to the recipients.

The point is demonstrated most clearly by the uncontested statement in the record below that approximately 93% of New York recipients received shelter allowances equal to their full cost.

Thus, the standard of shelter need is actual cost for the vast majority of New York recipients.

Justice Potter Stewart: We're talking about the AFDC program only or other?

Ms Judith A. Gordon: This is both, for both the AFDC program and the home relief program.

Those being the only two remaining programs that are subject to direct state supervision since the federal SSI takeover, and the 93% refers to both categories.

Justice Potter Stewart: AFDC and home relief?

Ms Judith A. Gordon: AFDC and home relief.

Justice Potter Stewart: And is the -- there's federal participation in home relief, is there?

Ms Judith A. Gordon: No, there is no federal participation in home relief.

Justice Potter Stewart: Wholly state?

Ms Judith A. Gordon: That is wholly state and locally financed.

The question of whether New York must subsidize shelter cost of the non-recipient who shares a dwelling with the recipient of AFDC or home relief is presented in the specific context of appellee's challenge to Section 352.30 (d) of the social services Title of the New York Code of Rules and Regulations, and is limited to the portion of the regulation which prorates the actual of maximum allowed rent for a dwelling share between recipients and non-recipients when that recipient pays less than $15.00 a month.

This non-recipient is called a non-contributing or nonpaying lodger under the terms of the regulation.

The result of the proration under this portion of the regulation is the determination of the per capita cost for each individual who lives in the dwelling, and the payment of shelter allowances equal to the per capita shares or needs of the recipients.

While no public subsidy is provided in the form of a shelter allowance or by other means for the needs of the nonpaying non-recipient lodger.

Sections 352.30 (d) contains an additional provision for contributing lodgers, who are defined again as non-recipients who share dwellings with recipients, but as individuals who pay $15.00 or more or $60.00 or more per month, depending on whether they are simply lodgers or boarding lodgers.

The contributing lodger's payment is income to the recipient and results in a pro tanto reduction of the total assistance benefits paid to the recipient, with the exception that the recipient is permitted to retain the first $15.00 or $60.00 pay as an income exemption or disregard.

Notwithstanding, the permanent injunction contained in the judgment in order of the District Court against this contributing lodger portion of the regulation, the appellees did not place this provision in issue below and concede it to be valid in their brief before this Court, at pages 94 to 95.

As stated, the lodgers in both categories where the nonpaying or contributing are non-recipients.

In addition, under the terms of the regulation, these non-recipients are individuals who do not owe the recipients with whom they live any duty of support, and concomitantly, the recipients and thus the state who is supporting the recipient owes the lodger no duty of support.

However, the lodger, like all other individuals, bears the primary responsibility for his own support, and this responsibility attaches to him regardless of whether he lives in a separate dwelling or whether he just shares a dwelling with recipients.

It continues until such time as the lodger receives assistance, when that primary obligation is assumed by the state.

In this sense, the lodger is in fact and is viewed under the terms of the regulations, as having the same obligation of self-support as all individuals in society who are not on assistance.

It is this primary responsibility or legal obligation of the lodger that is recognized by the regulation and no other.

In light of the holding of the District Court -- of the three-judge District Court majority, to the effect that the nonpaying lodger provision presumes diminished shelter need when that might not in fact be the case, and appellees' repeated assertions that the regulation necessarily results in reduced shelter allowances, is appropriate to review briefly the two factual situations in which the nonpaying lodger provision operates, which show in effect that both these contentions are incorrect.

First, when an individual is added to a dwelling after recipient shelter needs were originally budgeted, under these circumstances, the preexisting per capita costs of the recipient shares must be reevaluated to reflect the fact that the shelter needs of an additional individual are being met, and that the actual or allowed rent is now allocable among the increased number of individuals.

Two results follow: a reduction in per capita shelter need and cost of the recipients, and a consequent reduction in shelter allowances.

Now, this result occurs regardless or whether the individual who is added to the dwelling is a non-recipient herein a lodger, or whether he is indeed a recipient individual.

As illustrated by the example -- by taking the example of the situation where we have for example a group, both AFDC recipients living in a dwelling, a point in time comes when a home relief recipient is added to that dwelling unit.

The result under the New York program is to reduce the per capita shelter cost of the AFDC recipient, and to pay the proportionate share now held by the home relief recipient from the home relief program.

Now, under the specific terms of the regulation in issue, when the individual that is added to the dwelling is a non-recipient and nonpaying, we recognize these facts in the regulation by not providing a subsidy for the non-recipient, and by recognizing as well that since that recipient is nonpaying, per force, a share of that shelter cost will remain unpaid.

The fact that the shelter cost, a share will remain unpaid does not mean that the preexisting shares were not in fact reduced when the lodger moved into the dwelling, since the lodger is in fact meeting his own needs by his additional beneficial use of the premises, nor does it mean that the lodger's, the recipient's shares can be increased if the lodger doesn't pay by transference of these -- the lodger's shelter needs to the recipient group.

The second situation in which the nonpaying lodger provision operates, but does not reduce allowances is shown by the facts since support of the appellee Taylor's claim.

When AFDC recipient share dwelling with home relief recipients and one or the other recipient group looses its eligibility, and thus maybe become a nonpaying lodger under the terms of the regulation, the per capita cost of that individual is again not compensated.

However, since the number of individuals in the dwelling remained the same, the valuation of the preexisting shares also remains the same, and there is no reduction in the recipient's -- in the shelter allowances payable to the remaining recipients.

Thus, when appellee Taylor and her minor child received AFDC and appellee's sister received home relief, the maximum allowed rent for the apartment was prorated two-thirds to AFDC and one-third to HR for appellee's sister.

When appellee's sister lost her home relief eligibility and became a nonpaying lodger, appellee and her minor child continued to receive exactly the same shelter allowance, two-thirds from the AFDC program and without any reduction obviously.

The nonpaying/non-recipient, appellee's sister, the valuation of the share of the nonpaying/non-recipient remained again, the same.

The only difference between the home relief and post home relief situation is that that share to with Virginia Taylor share was not being paid.

The fact that the share --

Justice Potter Stewart: No.

It meant that the Taylor is the other and what about mother and son had to -- were stuck with the entire rent, although they were getting -- although the total group was getting one-third less shelter reliefs than before?

That's about it, isn't it?

Ms Judith A. Gordon: That's exactly the point I was coming to Your Honor.

The fact that the lodger share remains unpaid does not, I believe and I think we can illustrate, result in eligible or drastic consequences for the remaining recipient.

Rather it places the recipient and the lodger herein plaintiff -- appellee Taylor and the sister in a situation where they may choose among several alternatives.

First, the lodger may pay his share of shelter cost or possibly somewhat less and obtain the benefits of the contributing lodger side of the regulation which we cited.

Second, if the lodger is truly needy, as it was claimed Virginia Taylor would, she or he may apply for assistance which is made available in New York to everyone and at 100% of the standard of need.

Now, in terms of applying for assistance, the individual obtains a grant or allowance measured to meet his own need, which of course include the shelter cost and the per-person flat grant.

Justice William H. Rehnquist: Does the availability of that added kind of relief, does that bear on the statutory question or the constitutional question or both?

Ms Judith A. Gordon: The fact -- if I understand you correctly Mr. Justice Rehnquist, you're asking me whether or not the fact that any individual can obtain assistance bears on the operation of this regulation?

Justice William H. Rehnquist: Oh, I didn't ask whether it bears on the operation the regulation.

I ask you that it bears on the statutory question that's involved in this case or on the constitutional question or on both?

Ms Judith A. Gordon: I don't think it would bear on the statutory question because the statutory question is limited in this case to the AFDC program and the consistency of this regulation with the AFDC program.

I don't think it would be material to a determination of that consistency whether under other programs, other individuals could get aid, and we will come to a discussion of the relationship of the AFC statutes to that point.

Now, in terms of constitutionality, while I believe that a regulation which had a uniform rational and fair operation would obviously be sustained under a due process or equal protection argument.

It might be an argument under that -- under either clause that since, there was no avail -- if in fact, there were no availability of the supplemental fact of assistance in New York that the operation might operate -- the regulation might operate so harshly as to be so arbitrary and capriciousness as to deny due process.

However, that is not in fact the case since we do apply, we do have the supplemental assistance program.

Now, returning to the alternatives available to the recipient who lives with the nonpaying lodger; as I was noting, the individual -- the nonpaying lodger may obtain his own share of assistance, and thus provide the -- himself with his own means of support and generally, increase the maximum allowed rent available to the combined unit.

Now, this course of action was in fact followed by the former lodgers in the Otay claim and by Virginia Taylor, who I should not in response to your question Mr. Justice Stewart, is lost her original eligibility on home relief, apparently through her own fault.

The record shows that the status of the record on it is not extensive, but the record does show an affidavit of Morgan Rocklein from Nassau County that she failed to comply with continuing eligibility requirements.

She thereafter, having lost her home relief, but assistance reapply but aid to the disabled has been since transfer to the SSI program.

The third alternative is that the lodger may leave the dwelling, and thus remove the basis for the diminution of the recipient's allowances, if in fact his addition to the dwelling caused the diminution.

Fourth, he may stay in the dwelling and hope to have the recipients meet his shelter needs from the balance of the assistance funds provided from themselves; namely, the per-person flat grants for food, clothing and incidentals.

Now, Mrs. Delicio, an applicant for intervention below stated that this is the course of action that she would choose in order to hold her lodger in her home.

However obviously, in view of the three other alternatives which we've just noted, this course of action is not the inevitable or even the intended result of the operation of the regulation, and it is doubtful that it could be long pursued consistently with the goal of the AFDC program and the state's responsibilities under it; namely, the protection of the children, or even as a practical matter, if the lodger in fact paid nothing.

Now, we are compelled to note that appellee's position in this action does not alleviate the alleged harshness of this alternative to with the lodger staying in the house and eating and living of the flat grants provided for the recipients.

As noted on the Delicio claim, the situation is brought about under the facts of these cases because it's claimed that the lodger is destitute.

However, on appellee's view which would eliminate proration of shelter allowances, for any -- under all circumstances where the, as appellees would characterize it, where the individual lodger refuses to apply his available resources to meet his own needs, and thus because he is the destitute lodger and the rich lodger as well.

Now, given that appellee state that the refusal to apply his available resources to meet his own needs, or the refusal to obtain such resources from the public assistance program, the result of the combination of those two factors is that the lodger who remains in the home on appellee's view still must obtain the balance of his support from the flat grants provided for the recipient individuals.

Now as we've noted Section 352 functions essentially in two factual situations, both of which look at the lodger after the recipient shelter needs were first budgeted, and generally where the recipients were the first to tenants in the dwelling.

We've also noted that the computation of a shelter allowance under the New York program depends in part on the percentage of recipients who live in the dwelling.

Thus, we come to an additional regulation in the same Title of the State Code of Rules and Regulations, Section 352.3 (c) where, if the recipients move into a dwelling occupied by a lodger, they in their turn again receive prorated shares of the shelter cost of that dwelling up to an appropriate maximum to meet their own needs.

Thus, in factually similar circumstances, we have factually similar regulations, both of which are designed to meet the individual needs of the recipient wherein the individual needs of the recipient regardless of whether he lives with a lodger or if a lodger lives with him.

Indeed, proration is itself illustrated between recipients and recipients on the Taylor claim as we noted Mr. Justice Stewart when we pointed out that when Virginia was on the home relief program and the appellee and her child were on AFDC, there was in affect they proration as between those two programs.

Now, in subsidizing the shelter needs of the recipients and withholding a subsidy for the shelter needs of the nonpaying lodger, Section 352.30 (d) is a direct expression of the Social Security Act provisions providing for aid to families with dependent children, related states statutes and with implementing legislation in new -- under the -- with, pardon me -- and state statutes implementing the federal program, as well as state statutes governing the home relief program.

We do not even reach in this case the traditional question presented on the statutory side of AFDC cases; namely, whether the challenged state regulation imposes an additional condition of eligibility inconsistent with the federal statutes.

Indeed, the condition of eligibility required here qualified recipient status is the exact same condition imposed by the AFDC program itself.

Now, the federal legislation setting forth the AFDC program is set forth in some detail in our main brief at point one.

In sum, that legislation defines the class of aided individuals for AFDC in a manner which excludes the nonpaying lodger.

This is so principally because the lodger has not demonstrated his eligibility for assistance.

In short, he is not paid because he is not a recipient.

Appellees point that in addition and interestingly that the lodger could obtain assistance under the AFDC program, as he could obtain assistance under home relief, and this in fact true.

He can obtain assistance as an essential person.

Indeed, the facts Mrs. Delicio alleges would have made her lodger HN conceivably an essential person under AFDC.

They fail to know however that the major criterion for an essential person is of course that criterion which is applicable to all AFDC individuals; namely, demonstration of need.

Now, the federal and state statutes and regulations recognizes well, what is obviously commonsense and in fact true.

That people who receive AFDC and indeed people who receive home relief, may well choose to live with non-recipients and then when that set of circumstances occurs, it is necessary in order to follow the mandate of the legislation to separate the needs of the non-recipients, or the person who does not come within the aided classes under the federal program from the needs of the recipient.

Justice William H. Rehnquist: Mrs. Gordon?

Are you familiar with our Rule 4401?

It says that the Court looks with disfavor on any oral argument that is read from a prepared text.

Second, I apologize to the extent that I am in part reading, although I am not entirely reading.

Justice Byron R. White: Then you have a lot of company --

Ms Judith A. Gordon: Yes, I --

Justice Byron R. White: -- in this Court effective with Government counsel.

Ms Judith A. Gordon: As I was noting, the federal legislation notes that which obvious; namely, the dwellings maybe shared in common, and that when if that is in fact the case, it is necessary to separate one need from another in order to compensate only those needs of the recipient.

Now, this matter is usually accomplished in New York, which as we noted at the outset treats shelter as a separate item of need, a matter again with HEW approval, and with reference to this record established by a document called Simplified Methods of Determining Needs, published in 1964, and indeed, these statutes and the regulations recognize and the program material recognized that shelter allowances maybe computed on an individualized basis such as the system in which New York effectively has adopted.

Proration with the result of withholding the non-recipient share, is again expressly recognized by HEW, in that same 1964 document, and has been recognized with expressed reference to this regulation by the approval of the HEW Region 2 Commissioner, extended to this regulation specifically in the course of this litigation.

Indeed, HEW's policy has continued then to date, and is shown in the most recent document we have available to us; namely, Guidelines for Development of Consolidated AFDC Standards wherein HEW provides some recommendations for states who wish to shift to a flat grant, noting that the affect of a flat grant system is to average away differences caused by proration between recipients and non-recipients, thus, stating in effect that for system -- for states who do not adopt the flat grant system, that proration of rental policy is still of course in effect.

Justice Potter Stewart: Why is 35 -- or was it 352.30?

Ms Judith A. Gordon: How long is it?

Justice Potter Stewart: When was it enacted?

Ms Judith A. Gordon: Oh!

It was enacted specifically Your Honor, I believe in 1970.

We have several appendixes on that.

In -- 1970 or 1972, in terms in the expressed terms that it has -- that it presently has.

In approximately 1965, I believe, provisions were added to the social services title of the code which reflected the separation and proration of lodger's needs.

Now, the means of proration and the elements included in that system have varied from time to time, and certainly of course, we're only concerned with the last one, in appellee's brief at pages 1 (a) through 4 (a).

They cite some of the historical provisions and additional provisions appear in the appendix under the appropriate headings.

Justice Potter Stewart: Did New York ever have a rule of the kind that was held invalid in King against Smith?

Ms Judith A. Gordon: Absolutely not Your Honor.

New York never had a King -- a man in the House rule.

In fact, I was just coming to the portion of my argument where I was about to state that the regulation here involved is not a man in a House rule.

This is apparent first by the terms in the regulation, and the facts in support of the Otay, Taylor and Olosi claims, which show that the lodger category is not confined to paramours but may include sons, sisters and male and female friends of various kinds.

Second and more importantly, unlike King and Lewis, it does not depend, that is this regulation does not depend, on a fictitious obligation of support running from the lodger to the caretaker relative or to the children, to the extent either of their entire needs as in King or the extent of the lodgers' available resources as in Lewis.

Rather, two obligations are considered by the regulation, or perhaps one is a lack of obligation.

The lack of any legally imposed obligation on the part of the caretaker to support the lodger, and indeed, the obligation as we previously noted of the lodger to support himself; at least primarily and until such time as he comes to the state for assistance.

In light of these facts, appellees' repeated use of the term “payment for the family expense” is a complete misnomer.

The expense involved is that of the lodger, and his prorate of share is that share which is assigned to meet his own needs.

Now, turning briefly to the constitutional -- principal constitutional issue presented, we find that the nonpaying lodger provision does not depend on any irrebuttable presumption in violation of the Fourteenth Amendment.

This claim must be viewed in light of the fact as we've noted that we are concern here with a system of individualized shelter needs which confronts the realities of the real world in terms of the recipient's needs in that world, that the regulations involved expressed directly or at least clearly complement the federal AFDC legislation involved, and indeed, the federal HEW program material, and -- which, if they do not mandate, certainly allow the exclusion of the lodger's needs.

And again, we are confronted with the situation where the federal regulations and statutes, if they do not mandate one particular system of determining shelter allowances, certainly allowed this system and possibly a system based on average demands as well.

Now, none of the federal legislation here, and indeed, the major state statutory provisions are challenged as unconstitutional.

In short, the underlying legislation which provides the basis on which this system operates is conceded by appellees to be constitutional; it doesn't violate the Due Process Clause at all.

We then come to their point where they say “but these regulations which either directly implement or complement the system violate the Due Process Clause.”

Now, in terms of presumptions, we must add one further fact and that is this entire shelter allowance program, and indeed, regulation 352.30 (d) operates in the context where a hearing is in fact provided.

And that hearing is provided following at a recipient's request and following the investigation of the facts at every cert -- every case, in which a proposed reduction in the allowance is about to take place, and follows this Court's decision in Goldberg versus Kelly, and indeed, it is a pre-reduction hearing.

Now, we've already noted or perhaps, I should point up the fact that under the statutory side of the --

Justice Byron R. White: Now can you tell me Mrs. Gordon why the state makes its reduction?

Is it because it just doesn't want to support the lodger and the lodger inevitably is living off the state when he isn't qualified to do so, or are you assuming some contribution?

Ms Judith A. Gordon: No Your Honor, we are not assuming any kind of contribution.

We are -- the principal reason for the regulation is the first, you stated; namely, the conservation of the public assistance resources for those who are truly needy, and the avoidance of diversion of those resources for the benefit of those who are not needy.

Now interestingly, --

Justice Byron R. White: You're saying you're just familiar that the state is just entitled to withhold funds that are obviously being used to support someone who isn't entitled to assistance?

Ms Judith A. Gordon: That is absolutely correct Your Honor.

And particularly, one must realize that the lodger here is a stranger to the system.

The system does not investigate him to any extent of degree because he has not come before the Government and sought aid.

There --

Justice Byron R. White: What does the state do if it discovers at some welfare or some AFDC, a mother is giving $15.00 a month to her mother who lives down the street?

Just as in spending it on the support of her own -- of her own children or of herself, but is giving $15.00 a month to her mother who lives in another establishment?

Ms Judith A. Gordon: They are both civil and criminal penalties, available of civil remedies shall we say, as well as criminal penalties available under the present system.

But I would say first --

Justice Byron R. White: Can you recover the money that --

Ms Judith A. Gordon: We can recover -- we can -- one must understand first of all that we're talking about two different types of grants and allowances: one the flat grant.

Let us assume that she pays this money out of the flat grant.

It is unquestionably a diversion of that flat grant, although because its provided for her own needs, not that of her mother, but she is permitted to do that to some extent and degree because she has a discretionary choice of allocation.

What we watch most -- what we watch out for most is whether the interest of the child remain protected.

If in fact as Judge Oakes suggested in his Second Circuit's dissent, she can afford because she has made wise discretionary allocations of the money to leave a dollar on the collection plate on Sunday from that flat grant, we do not do that.

Now, when the interest of the child become involved, we have various forms of counseling that we can give her, both psychological and budgetary, down to the point in time where we can if we feel the need --

Justice Byron R. White: Can the state find -- is there some other way that the state can solve this problem of diversion other than doing what -- just doing what it does that --

Ms Judith A. Gordon: In other words --

Justice Byron R. White: Not only -- even if you left the grant, the flat grant the way it is without reduction, the child is -- it doesn't have as much space as if you thought it was going to have because the lodgers moved in and then sharing the space.

Ms Judith A. Gordon: I --

Justice Byron R. White: But then if you reduce the grant, you --

Ms Judith A. Gordon: If --

Justice Byron R. White: -- further -- you even make it harder on the child.

Ms Judith A. Gordon: Yes.

I --

Justice Byron R. White: Now, how is that concerning the welfare of the child?

Ms Judith A. Gordon: Two points should be made clear.

For example in your $15.00 to the mother down the street example, the child was not getting the benefit of that money, and that payment was harming the child.

Now, one could say I shall in that example, put that amount of money for specific purpose; namely, rent on restricted payment so she won't have the opportunity to give it to her mother down the street, if she gave part of the shelter grants.

Well obviously, that won't work in the lodger situation.

We could do as Judge Oakes suggested, we could pay the money to the woman and sue the lodger, or sue both of them at the end of a given month on the theory that he had obtained money haven't received where the benefit of a grant intended for another.

Now, the difficulty with that theory Your Honor is that, if we assume that were if it is true that we can recover the money from the lodger is perfectly clear that we didn't have to pay it to him in the first place.

And if we entered into/or to her in the first place, we didn't have to pay it for his benefit in the first place and if we entered into a system on the shelter side, where we sued -- where we sought to recover the amount of the lodger shelter benefit from the lodger, we would be involved in a system where each lodger would be sued at the end of each monthly or by monthly payment.

And as I say again, confessing the validity of the point of not making the benefit available in the first instance.

Justice Thurgood Marshall: Well, if the lodger is there and you cut the amount right and the lodger leaves, you give their amount back?

Ms Judith A. Gordon: Yes.

Justice Thurgood Marshall: With the only purpose is to get the lodger out of it?

Ms Judith A. Gordon: No Your Honor because if the lodger --

Justice Thurgood Marshall: Well, what other purpose is it?

Ms Judith A. Gordon: Because --

Justice Thurgood Marshall: You said “If the lodger goes the money goes back.”

You get the $100.00 for a shelter, and the lodger comes in and you say “Well, we're going to cut it to 80.”

And the recipient said, “Uh-uh, I can't stand that, get out lodger.”

Ms Judith A. Gordon: [Attempt to Laugher]

Justice Thurgood Marshall: Then you go back to the 100.

And the only thing that is accomplished is the lodger is been thrown out in the cold, cold world.

Ms Judith A. Gordon: Well, [Attempt to Laughter]

Justice Thurgood Marshall: Am I right?

Ms Judith A. Gordon: Just like the rest of us Your Honor, to provide for his own shelter need.

Now Your Honor, I'm afraid that there are two inherent defects in that line of reasoning: first, it assumes that there are something which appellees like the characterize, as a full shelter allowance or a full grant.

There is no such thing in the New York system as a full shelter allowance.

There is only a shelter allowance to meet each individual need.

Now it may be --

Justice Thurgood Marshall: Is that the $100.00 in my case?

Ms Judith A. Gordon: That one.

That would be a $100.00 in your case Your Honor if for example, there were four recipients and they're prorata shares of the allowed rent were $25.00 each, alright?

So, that would be a $100.00.

Justice Thurgood Marshall: It's a $100.00.

Ms Judith A. Gordon: Now, let's assume for example that at the time their needs were budgeted, there were three recipients and a lodger.

Their original grant would be, let's say on your example, $75.00, right?

Justice Thurgood Marshall: Mine is a $100.00 with three recipients and nobody else.

Ms Judith A. Gordon: Alright, on my example Your Honor.

There are now three -- four recipients.

Justice Thurgood Marshall: First, you answer mine.

Ms Judith A. Gordon: I'm sorry Your Honor.

I --

Justice Thurgood Marshall: You got three recipients?

Ms Judith A. Gordon: Yes.

Justice Thurgood Marshall: They say that minimum requirements for you -- for the three of you is a $100.00 a month.

The next month, a lodger moves in.

They don't say your requirements have dropped.

They say, oh lodger is moved in.

So without more, it's dropped to 80, and then lodger moves out and leaves the three recipients there, it goes back to a 100?

Justice Byron R. White: I take it that one possible answer is that with the lodger in, the people are still living in they have proved by the behavior that they don't need as much as they --

Ms Judith A. Gordon: No, that is not the answer.

But I think perhaps if I can clarify my response to Justice Marshall.

First of all in New York Your Honor, there is no such thing as a minimum for three.

There is only your proportion, your -- either a lodger or a non-recipient individual, your proportion of the allowed rent which we point out is largely the actual rent which is also a maximum, not a minimum, and a sealing on the amount of payments, not with anyone individual or anyone, any group of individuals is entitled to.

The measure of anyone's need is his proportion of the dwelling.

Now, if you have three recipients in a dwelling Your Honor, and the total dwelling costs $100.00 a month, each recipient in effect gets a third.

Now, appellees say on that point “but that's not true.”

Appellants are one because they only make one payment.

Now, it is true that in some circumstances, we make one payment.

For example, an AFDC caretaker and her minor children get one payment because she is the person of majority and they are all minors, anyway, put it so.

Therefore, when we say in your example, the thirds, they each get a third.

Now, that third also reflects their beneficial used of the dwelling, right, in thirds.

Now, if we add somebody else Your Honor, then we have fourths because we have four people using the dwelling, but the cost didn't increase.

In short, the needs of the dwelling -- the fourth individual were met in the same space Mr. Justice White.

Justice Thurgood Marshall: But the trouble is, in the houses you don't add on room.

Ms Judith A. Gordon: That's right Your Honor.

You don't add on room, but you add on people.

Justice Thurgood Marshall: So the fact that it would hold four --

Ms Judith A. Gordon: Yes.

Justice Thurgood Marshall: You knew that.

Ms Judith A. Gordon: Yes.

Justice Thurgood Marshall: When you put the three in there.

Ms Judith A. Gordon: It might hold either three or four Your Honor.

Justice Thurgood Marshall: Right.

Ms Judith A. Gordon: You can put --

Justice Thurgood Marshall: So, you gave a $100.00, and when all four moved in.

Ms Judith A. Gordon: Your Honor, we didn't give a 100.00.

We gave --

Justice Thurgood Marshall: We gave a hundred because you couldn't get it for any cheaper that's why you gave it a hundred.

You could not get that apartment for any cheaper, and while three individuals were in it, each was allocable one-third of the cost.

Now, since as in fact one of appellee's witnesses below testified in the evidentiary hearing, people are not mechanical toys.

The same apartment that accommodates three may very well accommodate four.

And when that fourth person comes in, he's need for shelter is being met.

And the question is then presented, “should we allocate to him a share of cost?”

If we do not allocate to him a share of cost Your Honor, we are operating under a totally different system than the one that New York operates under; namely, a flat grant.

In addition, if we say under the present system that the addition of an individual does not diminish shelter need, then we are making one of at least several irrebuttable presumptions which are far more detrimental to the program, and indeed to the individual recipient's welfare.

Justice Thurgood Marshall: You also cut down the food allowance when he eats?

Ms Judith A. Gordon: Absolutely not Your Honor.

We do not cut down the food allowance because --

Justice Thurgood Marshall: So, if he lived next door and came and then eat three meals a day, that's fine?

Ms Judith A. Gordon: No, that's not fine Your Honor because that would be as in the examples Justice White gave, probably a diversion of grants for the benefit of another, for which various civil remedies could be applied to the woman, for which various criminal remedies could be applied to the woman, and which indeed, ultimately, perhaps the ultimate sanction is --

But if you had a continuing pattern of behavior, wherein a caretaker relative were diverting substantial amounts of the resources provided for herself and her child to another, obviously, that's a diversion of the grant and there is a criminal penalty for that.

However obviously, we do not enforce it in single instances where there is no harm to the child that is exactly what I was trying to say.

And indeed perhaps the most severe sanction in the entire program is that if the woman neglects the child by diverting the resources on persistent basis, we ultimately have the power to remove the child.

But obviously, this does not work in the lodger situation because we're talking about a fixed shelter allowance allocable in amount of certain number of individuals.

I have reserved some rebuttal time and I will close now.

Thank you Your Honors.

Justice William H. Rehnquist: Mrs. Gordon, what if there were a situation where the mother and children occupied a couple of bedrooms and a lodger moved in and the social services people determined that that was just one too many people in the house to be helpful.

Would they have the authority to ask the person who owned or rented the place to make the lodger move out?

Justice Thurgood Marshall: Yes.

They will have the authority to ask her to do that.

I do not think particularly in view of the appellees' associational and privacy claim if they could compel where to do that.

As I say, the ultimate sanction for the woman who does not properly protect the interest of her children, is of course, the removal of the children and the termination of her status as a caretaker relative, if she does what you say.

Now, one of the difficulties involved in what you say in effect, one of the benefits of the operation of the regulation is in common sense, if you have a lodger who has money or if you have a lodger who applies for assistance, in other words, get the means to support himself or is willing to apply those means, he then in terms of his payment can pay a share of a larger apartment to accommodate the combined group, or he can on assistance, he obtains by virtue of his getting on assistance, in affect the right to a larger apartment to accommodate the combined group.

But if he chooses to refuse to pay anything, to refuse to get assistance, to live in effect off the grants of the recipient and the children who are the only individuals before the agency, then the choice -- their choice results in a situation you described, and our alternative is ultimately after exhausting our various lesser remedies to remove the children or possibly prosecute them if they neglect.

Thank you.

Chief Justice Warren E. Burger: Mr. Schwartz?

The fact that we fixed to 45 minutes for each side imposes no obligation on you to use all that time.

You may adjust your argument to whatever you think the needs are.

Argument of Martin A. Schwartz

Mr. Martin A. Schwartz: Mr. Chief Justice and may it pleases the Court.

In 1968, this Court in King versus Smith held that the Social Security Act prohibited the State of Alabama from denying needy and dependent children of AFDC assistance because the caretaker relative associated where the person had no legal obligation to support the children and who in fact provided no support.

This Court held that the Alabama substitute parent rule in effect defined the term “parent” in a manner that consisted with Section 606 (a) of the Social Security Act, and left Alabama's needy and dependent children without meaningful protection.

The New York lodger or the so called lodger, has the same relevant characteristics as Alabama substitute parent.

He is also a person who has no legal obligation to support the family.

He is also a person who has in fact provided no support.

Both the Alabama rule and the New York rule operate without regard to the family's actual needs.

The only difference between the substitute parent rule in King versus Smith, and the New York lodger rule, is that whereas Alabama completely denied AFDC children -- AFDC assistance.

The New York rule works a reduction in the AFDC grant because the caretaker relative has chosen to allow another person to reside in the home.

We submit that this Court in King versus Smith did not imply, and we submit did not intend that needy and dependent children can be denied part of their AFDC assistance based upon the fiction that their needs have diminished because the caretaker relative associates with the person who has the same characteristics as the substitute parent in King versus Smith.

Justice Byron R. White: But on the other hand, in Mr. Justice Rehnquist's example, mother and children are occupying two bedrooms and the mother's sister moves in with them and the children move in with the mother and the sister occupies the other bedroom.

I suppose the children aren't really enjoying the space they used to enjoy?

Mr. Martin A. Schwartz: I think that if New York had a rule that was based upon an assessment of the space needed for the family, and if in fact --

Justice Byron R. White: But the fact is that the lodger is being -- the space he occupies is being paid for by the state?

Mr. Martin A. Schwartz: Well, I have to disagree with that characterization Your Honor.

I say that from an --

Justice Byron R. White: Well, he isn't paying for it?

Mr. Martin A. Schwartz: He is not paying --

Justice Byron R. White: Somebody is.

Mr. Martin A. Schwartz: He is not paying for it, but the state, when it initially computes the family shelter allowance has computed the amount of shelter allowance that the state itself has determined is necessary to meet the needs of the AFDC family.

Justice Byron R. White: That maybe so, but that's space, it's necessary, is no longer being used by the children?

Mr. Martin A. Schwartz: Well --

Justice Byron R. White: Because the lodger's using it, and whatever the state computed is being needed by the child isn't being used anymore?

Mr. Martin A. Schwartz: Well, I think it's clear --

Justice Byron R. White: Well, isn't that so or not?

Mr. Martin A. Schwartz: That is so by definition.

Of course, it's not so.

We cannot assume that the lodger was using a prorata share of the apartment.

I mean, he maybe as Judge Oakes pointed out dissenting in the Court of Appeals, he maybe sleeping in a hallway, he maybe sharing a bed in another room.

Justice Thurgood Marshall: Wherever he is, the three members of the family can't be?

Mr. Martin A. Schwartz: Well, I can have no quarrel with that – [Attempt to Laughter] that the states however may not reduce the AFDC grant solely because the caretaker relative has invited another person into the home is substantiated, both by the regulation of the Department of Health, Education and Welfare which was promulgated subsequent to this Court's decision in King, and which was designed to implement the decision in King, and that regulation is now Section 233.90 (a) of the code of Federal Rules and Regulations, Title 45 and secondly, by this Court's decision in Lewis versus Martin, which upheld the validity of this HEW regulation.

Now, this regulation in essence provides that the inclusion in the AFDC family, where the presence in the home of any person other than a person who has a legal obligation to support the AFDC family is in the words of the regulation, not an acceptable basis for a finding of an eligibility, which would be basically a codification of the holding in King, the regulation goes on, or as, or for assuming the availability of income by the state.

I submit that this regulation was designed to ensure that needy and dependent children are not denied and do not receive a reduced grant of assistance, solely because the caretaker relative has invited a person without a legal obligation of supporting to the home.

Indeed, this Court's decision in Lewis versus Martin makes it clear that the state cannot reduce the grant, even where the person residing in the home has some legal obligation of support, but way this legal obligation is something less than that of a natural parent, and secondly, even where the person residing in the home has available income.

So, we submit that what New York is attempting to do here is to accomplish by the double assumption that (a) the so called lodger has available income, and (b), is applying the assumed available income to meet the family's needs, even though Lewis versus Martin in Section 233.90 will prohibit the states from even assuming that income which the lodger in fact has is available to meet the family's needs.

I think it is clear that the regulations in fact are based upon the assumption that the so called lodger is paying his share of the rent.

First of all, the lodger regulations themselves are on their face state that the available income and resources of the so called lodger shall be and applied in accordance with, and then comes a reference to proration in the grant and in addition, the lodger regulations on their face deem the person residing in the home to be a lodger.

Now the term lodger, I submit connotes a person who is paying his part of the rent.

In addition, I think the operation of the regulation substantiate that they are based on the assumption that the lodger is paying his part of the rent.

The family's rental obligation is of course fixed initially by its agreement with the landlord, and the defendants themselves compute the family's shelter allowance in a manner that is designed to reflect and meet the shelter needs of the AFDC family unit, which in most cases would mean a shelter allowance efficient to meet its actual rental obligation.

Now, these shelter needs and rental obligation do not automatically decrease of course by the fact that a caretaker relative has invited another person to reside in the home.

They would only decrease if the person invited into the home in fact pays part of the rent.

But I submit that it is this assumption of payment by the lodger, which is the very assumption of payment which is prohibited by this Court's decision in Lewis versus Martin and by Section 233.90.

In response to Mr. Justice Stewart's question, New York in fact, as one of its predecessor regulations to the present lodger regulation, had a regulation that queue conflicted with Lewis versus Martin, and it is set out in full in our brief at page 43, I will not take the time of the Court to read that.

The reduction in the grant is not based upon any assessment by the state that the family shelter needs have decreased, and I think, this is brought out by the dialog between Mr. Justice Marshall and my adversary, and it's clear that if the lodger moved out of the home, the full shelter allowance would be restored.

In addition, if the family moved to a smaller apartment, no matter how small this new apartment was, no matter how low the rent was in the second apartment, the defendants would continue to provide a prorated share of the rent.

I think this is made clear by the factual situation of one of the applicants for intervention, Loretta Claque, that she lives with her five children.

So, it's a family of six, and their rental expense and obligation is $75.00 per month, which is certainly I think a minimal amount for a family of six.

But because Mrs. Claque has invited another person to reside in the Claque household, the state continues to provide a reduced amount to meet their shelter needs.

Justice Thurgood Marshall: Mr. Schwartz?

Mr. Martin A. Schwartz: Yes.

Justice Thurgood Marshall: Do you agree that this person is getting shelter paid for by the state, the lodger?

Mr. Martin A. Schwartz: Well, that is a characterization I say.

Justice Thurgood Marshall: Well, is it true or not?

Mr. Martin A. Schwartz: Judge Oakes dissenting in the Court of Appeals, made the point that the lodger is not the beneficiary of any funds from the state.

He is the beneficiary of the generosity of the AFDC family.

Justice Thurgood Marshall: But, who's paying the rent?

Mr. Martin A. Schwartz: I submit that the AFDC --

Justice Thurgood Marshall: The state is paying the rent?

Mr. Martin A. Schwartz: The state initially provides the funds for the rent, but that rental allowance --

Justice Thurgood Marshall: While the state is paying for rent and he is living there, so, he is getting a bounty from the state?

Mr. Martin A. Schwartz: I submit --

Justice Thurgood Marshall: Well, without the state, would they be there?

Mr. Martin A. Schwartz: Would the lodger be there, is that the question?

Justice Thurgood Marshall: Would the family be there without the state wanting --

Mr. Martin A. Schwartz: I assume that the family would be some place.

Justice Thurgood Marshall: They wouldn't be in that premises?

Mr. Martin A. Schwartz: I agree that wherever they are --

Justice Thurgood Marshall: So, if the state is paying the bills?

Mr. Martin A. Schwartz: Indirectly Your Honor, the person residing in the home is getting --

Justice Thurgood Marshall: Since I can't get an answer to it, assuming that the state is paying it, and assuming that he is the lodger, he or she is getting the benefit of the state money, without the state's permission, what can the state do about it?

Mr. Martin A. Schwartz: Well, I submit --

Justice Thurgood Marshall: With you, I'd have to say “What if anything can the state do about it?”[Laughter]

Mr. Martin A. Schwartz: First, if the lodger were a relative, which is one possibility for example as reflected in the Taylor situation, and it is also reflected in the Otay situation, the State of New York I believe it would be within its police powers as the State of California in Lewis versus Martin to enact of statute which would provide for an obligation of support by that relative.

That's one possibility.

Justice Thurgood Marshall: One possibility.

Mr. Martin A. Schwartz: Now I think the question is more difficult if the person is a non relative.

The possibility rises that the state may be able to proceed against the lodger to collect part of the rent.

Of course, that --

Justice Thurgood Marshall: How?

I assume the lodger didn't have any money.

Mr. Martin A. Schwartz: I'm only of course, hypothesizing the state could possibly and I'm not conceding the --

Justice Thurgood Marshall: The state might get its money --

Mr. Martin A. Schwartz: I'm not conceding the validity of such a statute, but I'm saying --

Justice Thurgood Marshall: When you do that, aren't you going to concede that the state has the right to get that money --

Mr. Martin A. Schwartz: No.

I'm saying, I'm not making that concession.

I'm just looking at the state possibilities.

But I think that under the money payment principle, once the state provides a grant to the public assistance family, the money payment principle guarantees that family freedom of choice in expending that grant up to the point I would say that the children are being harmed.

I think it also has to be realized that the person in the home in King versus Smith and Lewis versus Martin were also getting those benefits and comforts that anyone who may reside in the home of another would receive.

But this Court held that the purposes of the Social Security Act which are designed to protect the children and to prevent harm from the children would override any incidental free ride, which I suppose I would have to concede that this lodger is obtaining.

But I submit, it is the same free ride that the person in the home in King versus Smith and Lewis versus Martin was receiving.

Justice Thurgood Marshall: But the state says that that applied only to men.

Mr. Martin A. Schwartz: The --

Justice Thurgood Marshall: The King case applied only to men [Attempt to Laughter].

Mr. Martin A. Schwartz: Well, I think the key to King versus Smith relates not so much to the technical use of the term.

Parent in Section 606 (a) even though that was the precise holding of the Court, but to the question of whether the children were deprived of parental support, and I think that was really the key issue.

And of course in Lewis versus Martin, the State of California was saying essentially the same thing that the State of New York is saying here.

They were saying that since this man is residing in the home, this man should take on the obligation of supporting the children.

He is getting the benefits of --

Justice Potter Stewart: Just that he should take on the obligation of paying for his lodging, his own lodging, that's the theory.

Mr. Martin A. Schwartz: Yes.

But I'm saying it's a very similar theory to that -- to the theory that the State of California had --

Justice Potter Stewart: He can do is support of the children, as I understand the state, the theory behind this lodge it just is that the -- his share of the shelter is attributable to him.

Mr. Martin A. Schwartz: Now, I recognize the differences.

I'm just saying that the State of California was saying something similar.

They were saying “you are here residing in the home, you're getting benefit from being part of the family.

Therefore, because of those instances, you should take on an obligation to provide support to the family up to the amount of you available income.”

In this case, New York is saying “because the lodger is in the home, he is getting the benefits in the home.

The lodger should pay his share of the rent.”

But I submit this assumption of payment is specifically prohibited by the Social Security Act Section 602 (a) (7), and certainly by Section 233.90 of the HEW regulations.

On the constitutional issues, the lodger regulations also create a conclusive presumption in violation of the Due Process Clause that whenever there is a lodger in the home, this person is able to and is in fact, paying a prorata share of the family's rental obligation.

The regulation works substantial takings of profiting in the forms of substantial reductions in the family's public assistance grant, and therefore come within the purview of the Due Process Clause.

To this Court's recent decisions hold that it violates the Due Process Clause for the state to work or taking of property on the basis of conclusive, we presume facts when the conclusive we presume facts are of the type that the state statutory scheme purports to be concern with.

In here, the New York statutory scheme purports to meet 100% of the needs of all of its recipients.

It purports to meet the full shelter obligation of all of its recipients.

It purports to be concerned with the actual needs, the actual resources, the actual income of each of its recipients.

And indeed, the lodger regulations themselves on their face purport to be concerned with the lodger's available income and resources, which may in fact not even exist, and with actual contribution by the lodger.

Justice Byron R. White: Assume there was a -- assume the state calculated how much a family of four needed for food, is a $100.00 a month.

Now, you give them a $100.00 a month, then the family moves in a so called lodger or a relative and he lives off the $100.00 along with the other four.

Now, he's eating part of the food.

Now, is there anything the state can do about that?

Mr. Martin A. Schwartz: Yes.

I think they can.

Justice Byron R. White: What can they do?

Mr. Martin A. Schwartz: Alright.

First of all, I think what they can do is reflected in this Court's decision Wyman versus James and the whole purpose of the case work or visit, is to provide a safeguard against this type of abuse.

Justice Byron R. White: The facts are perfectly clear, and the recipient -- and the AFDC recipients says well of course, they've fifth person who's living here and the relative didn't mine and I intend to keep him and we can all live on a $100.00 a month, it's just that we're not eating as well as we did.

Mr. Martin A. Schwartz: Right.

As they say, under Wyman versus James is possibility of case work services, to prevent this type of divestiture of the grant from continuing.

Justice Byron R. White: I know, by the recipient, he says “go about your own business, I'll go about mine.”

Mr. Martin A. Schwartz: Now of course, this Court in Wyman versus James said that the recipient cannot make that assertion.

At least, with the recipient cannot say that --

Justice Byron R. White: Do you mean that -- you mean that the state could say “Well either move the lodger out or we are going to cut you off entirely”?

Mr. Martin A. Schwartz: Well, the state can.

Justice Byron R. White: You suggest that and know it?

Mr. Martin A. Schwartz: No because that would conflict with our assertions --

Justice Byron R. White: I will take it would.

Mr. Martin A. Schwartz: Of the rights of privacy and association.

However, the state could make restricted payments, or provide voucher payments to the family.

In other words if there was a problem as to whether the rental allowance was in fact being met to meet the rental needs the state could make a direct payment to the landlord; this is provided by federal regulations and states regulations.

Justice Byron R. White: Oh I know, but whatever -- in my example, whatever food comes into the house by five people now sharing instead of four and what can the state do about it?

Mr. Martin A. Schwartz: I mean, this is an assumption, but there's nothing in the record in the Instant case.

There is nothing in the Instant case that indicates that these so called lodgers are paying their food and clothing from the grants of --

Justice Byron R. White: I understand that, I understand that, but they are sharing the space?

Mr. Martin A. Schwartz: They are sharing the space.

Despite the state's concern with meeting the actual needs of each of the recipients the grant is reduced automatically, solely because the caretaker relative has allowed another person to reside in the home.

I submit that the state can rationally make case-by-case determinations of whether this lodger has in fact made a contribution, indeed, even -- can make case-by-case determinations whether the family has any excessive space.

And making these case-by-case determinations would not impose a great burden on the state in view of the fact that the state already makes its fair hearing procedure available in all cases are proposed reductions in the public assistance grant.

Justice William H. Rehnquist: What if they decided that the family didn't have any excess of space, just without the lodger and that the lodger was one too many?

Mr. Martin A. Schwartz: Is the example that they did have excess --

Justice William H. Rehnquist: No, they haven't --

Mr. Martin A. Schwartz: -- that they were over crowded.

Justice William H. Rehnquist: Yes.

Mr. Martin A. Schwartz: I would concede that if the state determined that the family was residing in over crowded quarters, that perhaps the state could take steps to compel the lodger to leave.

I say that --

Justice William H. Rehnquist: Well certainly, if your example of the state could proceed on a case-by-case basis is to mean anything, presumably if the care -- the state found the facts in the individual case that they would have to be --

Mr. Martin A. Schwartz: Yes, I agree.

I think in this -- the interest of the children are paramount throughout the entire AFDC program, and any rights that the caretaker relative might have in relationship to association with the lodger would have to give way to the welfare of the children.

Justice Byron R. White: What good would they do if you say “How much difference would -- (Inaudible)

Mr. Martin A. Schwartz: I would concede that in that instance, any rights of privacy in association that the caretaker relative has would give way to the --

Justice Byron R. White: Give way to what?

Will the state (Inaudible)

Mr. Martin A. Schwartz: I think in that instance that the state could insist that the lodger leave the home.

Justice Byron R. White: (Inaudible)

Mr. Martin A. Schwartz: It may ultimately result in a neglect proceeding, having to be brought against the parent.

I mean this remedy is available --

Justice Thurgood Marshall: What kind of procedure --

Justice Byron R. White: -- to cut off payment if you don't take the aid off?

Mr. Martin A. Schwartz: I don't think cutting the aid off would solve the problem.

If the family is living in overly crowded quarters in accordance with the example given by Mr. Justice Rehnquist, it's not going to solve the problem to provide the family with the reduced public assistance allowance.

It seems to me that that is only going to cause further harm to the family.

It's not a means of tackling the problem.

Our claim under the --

Justice William J. Brennan: Well, you really come back to what Mr. Justice White suggested that all they can do is -- the state can do is initiate a proceeding to take the children away from the mother?

Mr. Martin A. Schwartz: Well as I say, there are steps prior to that drastic steps that possibility of case work services is there.

There are immediate -- intermediate steps that --

Justice William J. Brennan: All to the end of persuading the lodger to get out?

Mr. Martin A. Schwartz: In a case where the children are being curbed, only in that --

Justice William J. Brennan: -- doesn't get out, and then say (Inaudible) with the procedure from taking the children from--

Mr. Martin A. Schwartz: I would say in the case where the parent is doing something that's causing harm to the children, that a neglect proceeding may well have to be the ultimate remedy.

Chief Justice Warren E. Burger: Do you suggest the state would be enabled to bring an eviction proceeding against the lodger?

Mr. Martin A. Schwartz: Well, the state would have no standing under New York state law to bring an eviction proceeding.

Only the --

Chief Justice Warren E. Burger: What if these mediation efforts that Mr. Justice White was asking you about failed.

What is the ultimate --

Mr. Martin A. Schwartz: Well as I say, if they fail, the Department of Social Services may well have to bring in neglect proceeding.

It would be brought New York family court and of course, the New York family court has wide discretionary powers as to the --

Chief Justice Warren E. Burger: Against whom, against the --

Mr. Martin A. Schwartz: It would be brought against the parent, against the caretaker relative.

Chief Justice Warren E. Burger: And then the State of New York will have to do something about supplying a lawyer for the --

Mr. Martin A. Schwartz: Well, the Department of Social Services in New York routinely unfortunately in a social sense, it has to bring neglect proceedings in New York family court.

Chief Justice Warren E. Burger: Well, they have to supply an attorney for the lodger also to defend his rights?

Mr. Martin A. Schwartz: Under state law, there is a statutory right of assigned counsel.

I believe, it is Section 18 (b) of the judiciary law.

Justice Thurgood Marshall: You have the lodger party to the --

Mr. Martin A. Schwartz: No.

The lodger would not be a party -- I'm sorry.

If the right was -- if the question was whether the lodger had a right to --

Justice Thurgood Marshall: Yes, I --

Mr. Martin A. Schwartz: The lodger would not be a party to the neglect proceeding --

Chief Justice Warren E. Burger: On you definition, the lodger is some sort of a third-party beneficiary here, and his rights are being attacked by someone I -- he probably would claim a right to counsel, wouldn't he?

Mr. Martin A. Schwartz: Well, I don't believe that the lodger would be a proper party in the neglect proceeding.

I don't think he has any interest in the issues relating to the welfare of the child, which are the proper subject of a determination between the state and the caretaker relative as determined by the family court.

I do not believe that the lodger would be a party to that proceeding.

I misunderstood your prior question.

The New York law is under Section 18 (b) of the judiciary law, and as established by the New York Court of Appeals decision in matter of Ella B there is a constitutional right to assign counsel that the mother has in the neglect proceeding, not the care -- not the lodger.

Finally, our equal protection claim boils down to the fact that with the lodger regulations do is to create two classes of equally needy families.

One class consists of the families in which the all persons in the home are recipients of public assistance.

The second class of families consists of families in which the caretaker relative has invited a non-legally responsible person to reside in the home, and solely because the caretaker relative has invited the so called lodger into the home the second class of families receives a reduced shelter allowance and receives a shelter allowance which is insufficient to meet the actual shelter needs and rental obligation of the family.

Now, we contend that the caretaker relatives' decision or choice to invite the lodger into the home is constitutionally protected by the related rights of privacy and association in the home.

These rights have been recognized by such decisions of this Court as Griswold versus Connecticut and Eisenstadt versus Bad, which create a zone of privacy in the home.

The lodger regulations penalized the family that -- the family and the caretaker relative for exercising this right by reducing the allowance solely because the caretaker relative has invited another person to reside in the home.

We submit that the state does not have a compelling interest to justify the infringements of the rights of privacy and association.

It could reasonably accomplished its interest by making case-by-case determinations of whether the lodger has in fact made a contribution, whether the family in fact has excess space.